JOSIANE SWARTZ, APPELLANT,
v.
CITIMORTGAGE, INC., APPELLEE
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Josiane Swartz appealed a non-final order denying her motion to quash service of process in a mortgage foreclosure action. The Fifth District Court of Appeal affirmed, holding that Swartz waived her defense challenging service of process by failing to raise it at her first opportunity.
The court held that the defense challenging the sufficiency of service of process is waived if not raised at the first opportunity either by motion or responsive pleading. Swartz's failure to raise this defense in her initial motion to dismiss constituted a waiver, and the trial court properly denied her motion to quash service of process.
[1] A defense challenging the sufficiency of service of process is waived if not raised at the first opportunity, either by motion or responsive pleading.
[2] An order denying a motion to dismiss for lack of standing is a non-final, non-appealable order.
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Join FLexlaw to unlock all legal intelligence“It is well-settled that a defense challenging the sufficiency of service of process is waived if not raised at the "first opportunity" either by motion or responsive pleading.”
Establishes the controlling legal standard for waiver of service of process defenses
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Join FLexlaw to unlock all legal intelligenceCitimortgage served Swartz with process in a mortgage foreclosure case. Swartz filed a motion to dismiss that did not contest the sufficiency of the s…
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Josiane Swartz appeals from a non-final order denying her motion to quash service of process, arguing that the lower court lacks jurisdiction over her person in this mortgage foreclosure case based upon alleged irregularities in issuance of the summons served on her. We have jurisdiction. See Fla. RApp. P. 9.130(a)(3)(C)(i); ReEmployment Servs., Ltd. v. Nat. Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007). After being served with process, Swartz filed a motion to dismiss which in no way contested the sufficiency of the summons or service. She never amended her motion to dismiss to include this issue as a defense, and first raised the issue approximately nine months later when she filed her motion to quash service of process. It is well-settled that a defense challenging the sufficiency of service of process is waived if not raised at the “first opportunity” either by motion or responsive pleading. Re-Employment Servs., Ltd., 969 So.2d at 470 (citations *268omitted). The trial court properly applied this law in denying Swartz’s motion.1
AFFIRMED.
PALMER, LAWSON and JACOBUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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The Panama City Gen. P'ship v. Godfrey Panama City Inv., 109 So. 3d 291 (Fla. 1st DCA 2013)…ntained in the same order as the ruling on service of process do not “tag along” to become appealable non-final orders under rule 9.130(a)(3)(C)(i). RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993); Swartz v. CitiMortgage, Inc., 97 So. 3d 267, n. 1 (Fla. 5th DCA 2012). The order denying the motion to set aside the clerk’s default does not become an appealable non-final order by virtue of being contained in the order denying motion to quash service. Accordingly, our review in this appeal…
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Sch. Bd. OF Broward Cnty. v. City OF Coral Springs, 187 So. 3d 287 (Fla. 4th DCA 2016)…where a non-final order subject to review under Rule 9.130 contains other rulings which are not independently appealable, they do not “tag along” for purposes of jurisdiction and review by the appellate court). See also Swartz v. CitiMortgage, Inc., 97 So. 3d 267 (Fla. Sth DCA 2012).…
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Acosta v. BAC Home Loans Servicing, 113 So. 3d 987 (Fla. 5th DCA 2013)…PER CURIAM. AFFIRMED. See Swartz v. CitiMortgage, Inc., 97 So. 3d 267 (Fla. 5th DCA 2012). GRIFFIN, COHEN and BERGER, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Re-Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007)
- RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993)
- Giokas v. State, 469 So. 2d 949 (Fla. 5th DCA 1985)